On November 2nd, the USPTO issued new guidance to Patent Examiners regarding § 101 subject matter eligibility. The memorandum (accessible here) provides guidance based on Federal Circuit decisions issued since the Office’s most recent, May 2016, update. The four page letter includes guidance based on the Federal Circuit’s recent decisions in McRO, Inc. v. Bandai Namco Games, and BASCOM Global Internet v. AT&T Mobility decisions.

The memo includes discussion of the concept of “preemption” in a subject matter eligibility analysis and further cautions Examiners regarding the use of non-precedential decisions inappropriately.